It is a win for members of the lesbian, gay, bisexual, transgender and Queer (LGBTQ) community after the Supreme Court allowed them to formally register their own association.
In a majority judgment, the apex court upheld the decision of the High Court and the Court of Appeal which found the NGO Coordination Board violated the right to freedom of association by refusing to register an NGO that championed the rights of the LGBTQ community.
In the case, Eric Gitari had approached the NGO coordination Board seeking to register his NGO, an application which was rejected. He moved to the high court which allowed him to register his NGO.
The NGO coordination Board lodged an appeal at the Court of Appeal in Nairobi, challenging the whole judgment and decree of the High Court.
The Court of Appeal in 2019 by a majority of 3-2, dismissed the appeal, affirming the judgment of the High Court.
Dissatisfied with the Court of Appeal’s decision, the Board filed an appeal before the Supreme Court where the majority judges of 3-2 also dismissed it.
Deputy Chief Justice Philomena Mwilu and Supreme court judges; Njoki Ndung’u and Smokin Wanjala who were the majority, held that the Board violated the Gitari’s right to freedom of association under Article 36 of the Constitution.
“NGO Coordination Board’s decision was discriminatory… it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants,” ruled the judges.
The judges noted that by refusing to register the NGO, the persons were convicted before they contravened the law which criminalizes gay sex.
Supreme Court Judges; William Ouko and Mohammed Ibrahim who dissented said the board did not violate any rights as freedom of Association is not absolute and may be subject to limitation.
Justice Ibrahim noted that as long as Section 162, 163 and 165 of the Penal Code remain valid edicts of law, then the board could not have reserved a name or allowed the formation an association with the very terms that imply or whose declared purposes are in support of actions that are against the law or expressly banned by it.
Justice William Ouko on his part noted the phrase “association of “any kind” in Article 36 was not intended by Kenyans or the framers to mean associations of all manners.
“It certainly does not include associations whose activities are inconsistent with the Constitution or contrary to the law, or those whose objects may offend members of a particular community, religious, ethnic or racial groups or whose name is obscene, offensive, hateful, derogatory or defamatory; or on that adopt a name of a proscribed group,” he said.
He said the Board has discretion to refuse to register any association if the association does not meet certain specified conditions spelt in the law.